HomeMy WebLinkAboutEncina Wastewater Authority; 1998-01-26;‘. . . ” . . -
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MEMORANDUM OF UNDERSTANDING FOR OPERATION AND MAINTENANCE OF BD'ENA VISTA PUMP STATION AND AGUA HEDIONDA PUMP STATION
This Memorandum of Understanding is entered into as of January 26, 1998 by and between the Cities of CARLSBAD and Vista, hereinafter referred to as CARLSBAD and VISTA and the Encina Wastewater Authority, hereinafter referred to as EWA, with respect to the following .facts:
RECITALS
1. CARLSBAD and VISTA jointly own the Buena Vista and.Agua Hedionda pump stations , including the forcemains associated with such stations, their valves and appurtenances, and certain gravity sewer lines, identified in Exhibit 1, hereto. For the purposes of this Memorandum, the pump stations and the related facilities located inside of the fencing surrounding the Buena Vista and Agua Hedionda pump stations, as shown on Exhibit 1, shall be collectively referred to as the "Pump Stations.l@
2. Section 12.1.2 of the Revised Basic Agreement provides that EWA shall operate and maintain, at the expense of VISTA and CARLSBAD, the Pump Stations (formerly referred to as Units B and G of the Joint System), within an annual estimated budget prepared.by EWA and approved by VISTA and CARLSBAD.
3. EWA is currently operating the Pump Stations to .the satisfaction of CARLSBAD and VISTA.
4. CARLSBAD and VISTA desire EWA to continue to operate and maintain the Pump Stations, and EWA is willing to provide such services, subject to written terms and conditions.
NOW, THEREFORE, in consideration of the mutual promises, obligations and covenants set forth herein, CARLSBAD, VISTA and EWA agree:
ARTICLE I: SCOPE OF WORK
Specific services to be provided by EWA hereunder are detailed in Exhibit 2, Scope of Work for Annual Operation and Maintenance (O&M) Services. In the event 'of any conflict between the provisions of Exhibit 2 and this Memorandum, the terms of the Memorandum will govern. In performing these services, EWA shall follow practices consistent with generally accepted technical standards and EWA represents that its staff are skilled in the expertise necessary to provide these services.
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ARTICLE -11: BUDGETING
CARLSBAD and VISTA shall compensate EWA for all expenses associated'with the operation and maintenance of the Pump Stations, in accordance with annual budgets to be developed and recommended by EWA and adopted by CARLSBAD and VISTA. These expenses shall include but not be limited,to such things as salaries and benefits, maintenance costs, utilities, chemicals, permits, monitoring, accounting and auditing costs, administration costs, legal services, overhead costs, and insurance.
The Pump Stations' budgets shall be assessed on a fiscal year beginning July 1 and extending through June 30 of the following year and shall be prepared in accordance with generally accepted accounting principles, as follows:
1. Concurrently with the preparation of the annual operating budgets for EWA, but no later than May 1 of each year, EWA shall prepare estimated budgets for the amount of money required to operate and maintain'the Pump Stations. The operating budgets shall be separate for (a) the Buena Vista Pump Station, (b) the Agua Hedionda Pump Station. The budgets shall also include not less than a $50,000 emergency contingency reserve for each Pump Station, to be increased from year to year as necessary. Additionally the budgets shall include the total dollar amount of the operating reserve to be held by EWA; this amount will generally,equal ten percent of the annual operating budget, calculated based on the total budgeted amounts, excluding the prescribed emergency contingency amounts, but including other contingency funds.
2. EWA shall also prepare recommended capital acquisitions budgets as part of the annual budget process for the Pump Stations. The capital acquisitions budgets shall be for replacements and rehabilitation efforts which will not affect the designed capacity or operating characteristics of the station, to maintain station reliability, safety and compliance with regulatory requirements, except as specifically authorized pursuant to paragraph 3, below.
3. EWA shall not be responsible to prepare or execute capital budgets for the improvement, expansion and/or upgrades of the Pump Stations. However, EWA may make suggestions regarding improvements which it believes are necessary or desirable. To the extent such improvements are expected to require an expenditure of less than $50,000 (or the total budgeted amount of the emergency contingency reserve for the affected station), CARLSBAD and VISTA may request that such improvements be included in the capital acquisitions budgets for implementation by EWA;
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however, EWA shall have no obligation to accept responsibility for undertaking such improvements.
Except 'as otherwise agreed, VISTA shall be responsible for the planning, design, bidding, construction management or supervision of any capital improvements for the Pump Stations: Under no circumstances shall EWA be responsible for the planning, design, bidding,. construction management or supervision of such work at either Pump Station. EWA shall, however, coordinate the continued operation and maintenance of the Pump Stations as necessary during the course of such construction. CARLSBAD and .VISTA shall, before letting any contract for such work, provide a reasonable opportunity to EWA to comment on plans for making the proposed improvements,as respects operational consequences. Any such contract shall require'the contractor to name EWA as additional insured as to any insurance required of the contractor ,by the awarding agency and as to which the awarding agency will be insured, provided that EWA need not be an insured under any bid, performance or payment bonds required.
4. Following approval by EWA, the estimated operating and capital acquisitions budgets shall be forwarded to CARLSBAD and VISTA for approval. The estimated budgets shall be deemed effective upon the receipt by EWA of a certified copy of an approving resolution by CARLSBAD and VISTA. Until such time as formal approval has been received from CARLSBAD and VISTA, the estimated budgets shall constitute merely proposed budgets, subject to consideration or revision. In the event a proposed' budget is not approved, EWA shall continue to operate and maintain the Pump Stations using the previous fiscal year budget figures, provided that if no budget is approved prior to the end of the current fiscal year, EWA shall have no obligation to : continue to provide services hereunder after the close of the fiscal year.
ARTICLE III: FUNDING
1. For the purposes of this Memorandum, responsibility for expenses incurred by EWA related to the Buena Vista Pump Station shall be allocated 15.5% to CARLSBAD and 84.5% to VISTA; and responsibility for the Agua Hedionda Pump Station shall be allocated 38.5% to CARLSBAD and 61.5% to VISTA. Whenever CARLSBAD and VISTA agree, as between themselves, to alter these allocations, written notice of any change shall be given to EWA by both CARLSBAD and VISTA prior to the commencement of the fiscal year for which the change is to be effective. EWA shall be entitled to rely upon the written notices provided by CARLSBAD and VISTA as to any change in the allocation of expenses between the cities as to either or both Pump Stations.
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2. Quarterly, on October 1, January 1, April.1, and July
1, EWA shall bill CARLSBAD and VISTA. CARLSBAD and VISTA shall promptly pay for the operating and capital acquisitions expenses, incurred during the prior quarter of the fiscal year, excluding the emergency contingency. To the extent any operating reserve carried over from the prior fiscal year is insufficient, the operating reserve shall be billed on October 1, and replenished, as necessary upon subsequent quarterly billings. In the event that at the end of the fiscal year, the amount paid exceeds the audited actual expenses, the excess shall be credited to CARLSBAD and VISTA the following fiscal year. In the event the amount paid, including the operating reserve, is less than the audited actual expenses then EWA shall bill CARLSBAD and VISTA the additional expenses in the October 1 billing.
3. The emergency contingency reserve amount will be billed and. collected only on written demand by the EWA if an event occurs at the Pump Stations outside normal operations and maintenance.
4. In.accordance with the Revised Basic Agreement, the failure by one of,the parties, CARLSBAD or VISTA, to pay budgeted expenses shall not relieve the other party of its obligations to pay its proportional share, in addition to the unpaid balance of the party who failed to pay.
ARTICLE IV: ACCOUNTING AND AUDITS
EWA shall maintain full financial records showing all
_' expenses associated with or related to the work covered hereby. These records shall conform to generally accepted accounting - principles, and shall be examined by a certified public accountant prior to May 1 of each fiscal year as a part of EWA's annual audit of the Joint System.
ARTICLE V: LIABILITY
Notwithstanding the provisions of Government Code Section 895.2, CARLSBAD and VISTA shall, to the fullest extent allowed by law, indemnify, defend and hold EWA and the member'agencies of EWA which have no ownership interest in the Pump Stations, their officers, directors, agents and employees harmless from any and all claims, demands, liens, actions, liabilities, costs, and expenses, including attorneys' fees, based upon or arising out of. or claimed to have arisen out of any act or omission by EWA related to this Memorandum, other than actual intentional or willful misconduct of an EWA employee, officer or'agent. Buena Sanitation District, the Leucadia County Water District, the Vallecitos Water District, and the City of Encinitas currently have no ownership interest in.the Pump Stations.
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CARLSBAD and VISTA also agree to hold harmless and defend such agencies and EWA, their officers, agents, and employees with respect to claim or legal proceedings or judgment made, filed, or presented against the foregoing, by reason of CARLSBAD and VISTA's, or their officers', agents', or employees'.negligence, intentional or willful misconduct regarding operation and maintenance of said Pump Stations during the term of this Memorandum.
ARTICLE VI: PUBLIC INFORMATION
1. General Operations. CARLSBAD and VISTA agree that the release of public information, except records requested under the Public Records Act, in situations relating to the general operations of the Pump Stations will be the r,esponsibility of CARLSBAD and VISTA. EWA shall forward all media requests for information, except records requested under the Public Records Act, to the VISTA city manager or a designee to respond to such inquiries. Notwithstanding the foregoing provision, VISTA and CARLSBAD may respond independently to any request for public information in situations relating to general operations of the Pump Stations.
2. Emergencies; Communications Plan. The parties agree to participate in an emergency drill at least annually, scheduled by EWA, to establish, test and refine emergency protocols for the Pump Stations, including a written emergency.communications plan for addressing public inquiries. EWA shall annually distribute the emergency communications plan to the parties following the emergency drill. The plan shall be consistent with this Article VI.
VISTA and CARLSBADagree to use their b&t efforts 'to ensure that a spokesperson is available to respond to public inquiries on behalf of the owners of the Pump Stations in a timely manner. EWA staff shall confer with the spokespersons for VISTA and CARLSBAD to determine the lead spokesperson in accordance with'. the communications plan. Where no'spokesperson is immediately available from VISTA or CARLSBAD, and EWA determines that it is in the best interests of the public that factual information be released immediately.in order to protect public health or safety, the EWA General Manager or his/her designee may release'such information to the public as necessary.
ARTICLE VII: INSURANCE
Upon approval of this Memorandum, as part of the annual operating budgets CARLSBAD and VISTA shall pay for and EWA shall maintain, in full force and effect, insurance in connection with or related to the work to be performed by EWA under this
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Memorandum. This insurance shall include general liability and workers' compensation insurance. In addition, EWA shall obtain such property insurance, flood insurance, including boiler and machinery, and as CARLSBAD and VISTA may deem necessary to safeguard the Pump Stations. All of the member agencies of EWA shall be named as additional insureds as.to the general liability coverages obtained by EWA. CARLSBAD and VISTA shall be named as additional insureds as to any property insurance obtained by EWA " for the Pump Stations, in accordance with their ownership interests. Insurance obtained by EWA shall be approved by CARLSBAD and VISTA. CARLSBAD and VISTA acknowledge that EWA participates in and generally obtains coverage through CSRMA, and that earthquake coverage is not currently available through that facility. The aforesaid insurance shall in no manner limit the indemnity provisions of Article V hereof.
ARTICLE VIII: DISCLAIMERS
1. EWA shall not be involved in setting or collecting any capacity or user fees for-the Pump Stations.
2. EWA shall not be responsible for any defects or errors in the design or construction of the Pump Stations, but only for the exercise of ordinary care in the operation and maintenance of the Pump Stations.
3. In the case of the Buena Vista Pump Station, where discharge flows are limited by the request of CARLSBAD and it becomes evident that an,overflow may occur, EWA will endeavor to contact the owners to make the decision where the overflow will be allowed to'occur. In the event of an overflow, EWA will make the initial contact with the Regional Water Quality Control Board (RWQCB) Office of Emergency Services (OES), and County Department of Health Services (DOHS) within 24 hours, and follow up with a written Sanitary Sewer Overflow Report within 5 days, on behalf of the owners,' and not on its own behalf. CARLSBAD shall be responsible for developing and maintaining the Pump Stations' spill response plan(s) required by any regulatory agency, and making current copies of such plans available to EWA. EWA shall comply with such plans on behalf of CARLSBAD and'VISTA as to the Pump Stations; provided that EWA shall provide CARLSBAD and VISTA draft spill response plans for such Pump.Stations. Except as set forth in this paragraph, however, EWA shall have no responsibility for maintaining or carrying out the spill response plans of CARLSBAD,or VISTA.
4. EWA also shall make good faith efforts to comply with all regulatory requirements imposed on the owners which are applicable to the Pump Stations.' At present, these include Order 96-04 Waste Discharge Requirements Prohibiting Sanitary Sewer
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Overflows by Sewer Collection Agencies issued by the San Diego Regional Water Quality Control Board to CARLSBAD and VISTA, Order No. 96-04 as amended.' CARLSBAD and VISTA shall promptly advise EWA if or when there are other applicable requirements. EWA shall have no obligation to seek any amendments to such requirements.
ARTICLE IX: DURATION OF MEMORANDUM; TERMINATION
This Memorandum shall remain in effect until April 1, 1999, and'shall continue from year to year thereafter, unless any party hereto gives not less than 60 days notice prior to the commencement of,any fiscal year of its intent to terminate this Memorandum. In the event of termination of this Memorandum, the. parties acknowledge that they will continue to be bound solely by the provisions of the Revised Basic Agreement and Revised Establishment Document, as each may be amended from time to time.
ARTICLE X: WARRANTS AND REPRESENTATIONS
CARLSBAD and VISTA warrant to EWA that:
1. To the best of CARLSBAD and VISTA's knowledge, there is not at present upon the Pump Stations, or any portion thereof, or on any continuous or adjacent property owned by CARLSBAD and VISTA, any toxic or hazardous substances, materials or wastes, including, but not limited to asbestos, other than those which have been disclosed to EWA in writing or which are ordinary and customary supplies, stored in accordance with all legal requirements, for the routine and on-going operation and maintenance of the facilities.
2. Except as provided in the Revised Basic Agreement, there are no covenants, easements, licenses , leases, or any other contracts, written or oral, between CARLSBAD and VISTA, their'agents or assigns, and any other person regarding the operation or maintenance of the Pump Stations.
ARTICLE XI: NOTICES
All notices, statements, demands, requests, consents, approvals, authorizations, agreements, appointments or designations hereunder shall be given in writing and addressed to: the Carlsbad City Manager at 1200 Carlsbad Village Drive, Carlsbad, CA; the Vista City Manager at P.O. Box 1988, Vista, CA; and the EWA General Manager at 6200 Avenida Encinas, Carlsbad, CA.
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ARTICLE XII: DISPUTE RESOLUTION
EWA, CARLSBAD'and VISTA agree that-the maintenance of a cooperative and mutually beneficial relationship between them is an important aspect of this Memorandum and therefore intend to provide means for resolving any disputes, claims, or controversies that may arise during the course of this Memorandum in an efficient manner to avoid resort to legal actions against one another, if feasible.
Therefore, except for any claim or action filed by a . nonparty to this Memorandum, any dispute, claim, or controversy arising with respect to the interpretation of this Memorandum or the performance of any party shall be first submitted to a three- step dispute resolution process that includes, in sequence: (1) an informal meet and confer process between representatives designated by all the parties, (2) mediation, and (3) arbitration.
Except for any claim or action filed by a nonparty hereto, upon any dispute, claim, or controversy ("Dispute") arising with respect to the interpretation of this Memorandum, or the performance of,any party, which is not immediately resolved between the parties, the party asserting such Dispute may, within 30 days from the date the Dispute has arisen, serve written notice upon the other that a Dispute exists with respect to this Memorandum, and each party shall then within fourteen days designate one or more representatives and shall establish a time and place at.which to meet and confer in mutual good faith to resolve the Dispute. If, after a reasonable amount of time and effort have elapsed, a resolution of the Dispute has not been established to the mutual satisfaction of both'parties, any party may then initiate a mediation process by serving a written notice of the election to mediate upon the other.
. In the event the election to mediate a Dispute is invoked by either party, a request for mediation shall be filed within 30 days in the San Diego Regional Office of the American Arbitration Association ("AAA") and the mediation shall be initiated and conducted in accordance with the Commercial Rules of mediation of the AAA, or by any other method mutually agreeable to the parties. Any statements-made during mediation shall remain confidential and may not be disclosed without consent of all participants.
In the event mediation does not resolve the Dispute, any party may then elect arbitration by providing a written notice of such election to the other parties. Such request must be mailed to the other parties within.30 days following the conclusion of mediation. Upon serving written notice upon the other parties,
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the request for arbitration shall be filed at the ?@A and the arbitration shall be conducted in accordance with the rules established by'the AAA, unless all parties mutually agree to an alternative method. Neither the parties nor the arbitrator may disclose the contents or results of the arbitration, except as may be required by law, without the prior written consent of all
parties. The parties may agree to be bound by the results of the arbitration and may agree that any award by or decision of an arbitrator shall be final.
Nothing in this procedure shall prohibit the parties seeking remedies-available to them at law.
During the course of any proceeding to resolve a Dispute, the parties shall continue to perform any duties or obligations existing under the Memorandum.
ARTICLE XIII: SEVERABILITY
If any one or more of the terms, provisions, promises, covenants or conditions hereof shall be adjudged invalid, 1 unenforceable, void or voidable for any reason whatsoever by a court of competent jurisdiction, each and all of the remaining terms, provisions, promises, covenants and conditions hereof shall not be affected thereby and shall be valid and enforceable to the fullest extent permitted by law.
ARTICLE XIV: MODIFICATIONS
This Memorandum, together with the Revised Basic Agreement, contains all of the terms and conditions made between the parties 'hereto and shall not be altered except by an amendment in writing.
ARTICLE XV: SUCCESSION; ASSIGNMENT
The provisions hereof shall be binding upon and shall inure to the benefit of the successors of.the parties. This Memorandum may not be assigned by any party without the written consent of the other parties.
ARTICLE XVI: GOVERNING LAW
This Memorandum is to be governed by and construed in accordance with the laws of the State of California.
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IN WITNESS WHEREOF, the parties hereto have caused this Memorandum to be executed as of the day and year first above written.
Approved as to form
By:
CITY OF VISTA
AUTHORITY.
Approved as to form
By: .45-Z/h- mA Counsel
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EXHIBIT 2
SCOPE OF WORK FOR ANNUAL OPERATION AND MAINTENANCE SERVICES
OPERATION AND MAINTENANCE OF BUENA VISTA AND AGUA HEDIONDA
PUMP STATIONS
EWA shall be responsible for all tasks needed to operate and maintain the Pump Stations. These tasks shall be performed within the annual operating budgets and, shall include:
1.
2.
3.
4.
5.
6.
7.
8.
9.
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Operation, maintenance, and monitoring of the Pump Stations in accordance with (a) safe and sound operational, maintenance, engineering, and accounting practices and (b) local, state and federal laws and regulations, except as provided in the Agreement for Operation and Maintenance of the Buena Vista Pump Station and the Agua Hedionda Pump Station. Operation and maintenance of the Pump Stations shall be coordinated with the operation and maintenance of the EWPCF, such that EWA attempts to provide CARLSBAD and VISTA with as cost-effective operation as possible, while maintaining station reliability.
Development and execution of contracts in connection with the operation and maintenance of the Pump Stations.
Employment of agents and employees to operate, maintain, administer, and manage the Pump Stations.
Preparation of annual operating and annual capital acquisitions budgets.
Incurring of debts, liabilities or obligations in connection with the operation, maintenance, administration and management of the Pump Stations.
Provision of financial and audit services for services provided by EWA hereunder.
Acquisition, holding, and disposition of such equipment as may be reasonably necessary to the operation, maintenance, administration, and management of the Pump Stations.
Filing of reports associated with the operation, maintenance, administration, and management of the Pump Stations.
Maintenance of insurance for maintenance and operations performed by EWA.
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The design capacity of the Buena Vista Pump Station with four pumps on is 23.1 million gallons per day
(mgd) , with three pumps on is 21.5 mgd and with two pumps on is 17.8 mgd. EWA shall not operate the Buena Vista Pump Station in excess of 15.8 mgd or 11,000 gallons per minute unless authorized in writing by CARLSBAD.
The design capacity of the Agua Hedionda Pump Station with three pumps on, and one in standby, is 31 mgd. No pumping restrictions have been placed on this station's output.
Routine inspection and maintenance of the air release and main line valves on the Buena Vista Pump Station forcemain, notwithstanding that such appurtenances are located outside of the fenced area of the pump station.
Preparation of draft spill response plans for the Pump Stations for inclusion by VISTA and CARLSBAD in the spill response plans VISTA and CARLSBAD maintain for the RWQCB or other regulatory agencies.
GVM\AGMT\59990.5
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ATTACHMENT 1
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Encina Wastewater Authority
Pump Station Public Information Protocols
January 6,198
Ref: 3705
1. EWA will make a unilateral determination to implement the Incident Command
System (KS) in response to an emergency incident at the Buena Vista or Agua
Hedionda Pump Stations (stations).
2. EWA will notify the Vista City Manager and the Carlsbad Director of Public Works
within 30 minutes of establishing the KS in response to an emergency incident at
the stations.
3. The owner agencies will designate a single point of contact (designee) for the
emergency.
4. Designees will make their best effort to respond to the scene of the emergency
within one hour after EWA makes initial contact pursuant to paragraph 2.
5. For the purpose of providing public information related to an emergency incident at
the stations, all communication between EWA and the owner agency will be
directed through the designee.
6. Prior to the release of any public information related to the emergency incident,
EWA and the designee(s) will confer and agree upon the:
a. form (i.e., verbal or written);
b. forum (i.e., place and timing);
c. format (prepared or extemporaneous, limits on Q & A, letterhead);
d. content of the release; and,
e. person who will act as the owner agencies’ spokesperson
7. A spokesperson addressing the media in response to an inquiry in any way related
to an emergency incident at the stations shall begin their address by making the
following statement:
“The (name of station) is owned by the cities of Vista and Carlsbad. The Encina
Wastewater Authority is the contract operator of the facility. I am (name)
(position) (agency) and h ave been designated spokesperson for the owner
agencies.”
/~ENCINA
WASTEWATER
\ ENCI .I * ..I. rTr.*,*Trn * I I-r. ./\mB.-m-.l
L AUTHORITY NA WA31 tWAI tK AU I IIUKI I Y
6200 Avenida Encinas
Carlsbad, CA 92009-l 095
Telephone (760) 438-3941
FAX (760) 438-3861 (Plant)
LETTER OF TRANSMITTAL c$y
Project No. To: City of Carlsbad Office of the City Clerk - 1200 Carlsbad.Village Drive Date: Carlsbad, CA 92008 June 29, 1998
Aletha L. Rautenkranz, City Clerk Subject: (See Description
Attn:
The following items are transmitted: 0 Herewith 0 Under Separate Cover Via:
Number of Copies
1 Memorandum of Understanding (MOU) for Operati Maintenance of Buena Vista Pump Station and Agua Hedionda Pump Station
The above items are submitted: 0 At your request 0 For your revtew 0 For your files
IJ For your approval 0 For your action 0 For your information
0 Per contract dated 0
.
original copy of the MOU for your files.
Copies to: Mr. Bob Greaney, w/attachment Transmitted by: Administrative Services Mr. Greg Moser, w/attachment Coordinator Mr. Michael Hogan, w/attachment Mr. Peter Nieblas w/attachment. The City of Vista's original. copy of the MOU.has-been retained by the City-Clerk's office.
Forward reply to Encina Water Pollution Control Facility
Be1 .ow)
SERVING THE CITY OF VISTA, CITY OF CARLSBAD, BUENA SANITATION DISTRICT, VALLECITOS WATER DISTRICT,
LEUCADIA COUNTY WATER DISTRICT AND CITY OF ENCINITAS